FEDERAL ELECTION COMMISSION 

Washington, DC 20463 

AGENDA DOCUMENT NO. 22-51-A 

AGENDA ITEM 

For meeting of Oct. 20, 2022

SUBMITTED LATE 

October 18, 2022 

MEMORANDUM 

TO: 

FROM: 

The Commission 

Lisa J. Stevenson Mr:5 £&1., L<Js 

Acting General Counsel {) v' -

Neven F. Stipanovic Mr:5 

Associate General Counsel 

Robert M. Knop RMK

Assistant General Counsel 

Heather Filemyr

Attorney 

Subject: Draft AO 2022-21 (DSCC, et al.) - Draft A 

We have been asked to place this draft on the Agenda by one or more Commissioners. 

Members ofthe public may submit written comments on the draft advisory opinion. We 

are making this draft available for comment until 9:00 am (Eastern Time) on September 

20, 2022. 

Members of the public may also attend the Commission meeting at which the draft will 

be considered. The advis01y opinion requestor may apperu· before the Commission at 

this meeting to answer questions. 

For more inf01mation about how to submit comments or attend the Commission meeting, 

go to https://www.fec.gov/legal-resources/advis01y-opinions-process/. 

Attachment 
1 ADVISORY OPINION 2022-21

2

3 Jacquelyn K. Lopez, Esq.

4 Rachel L. Jacobs, Esq.

5 Shanna M. Reulbach, Esq. DRAFT A

6 Jonathan A. Peterson, Esq.

7 Elias Law Group

8 10 G Street, NE

9 Suite 600

10 Washington D.C. 20002

11 Dear Counsel:

12 We are responding to your advisory opinion request on behalf of the DSCC, 

13 Bennet for Colorado, and People for Patty Murray concerning the application of the 

14 Federal Election Campaign Act, 52 U.S.C. §§ 30101-45 (the “Act”), and Commission 

15 regulations to requestors’ proposal for the DSCC to pay for two types of television 

16 advertisements, labeled Solicitation 1 and 2 in the request, using funds in the DSCC’s

17 account established under 52 U.S.C. § 30116(a)(9)(C) (“Legal Proceedings Account”). 

18 The proposed television advertisements would feature federal candidates, including 

19 Senators Bennet and Murray, and solicit donations to the Legal Proceedings Account. 

20 Requestors ask whether the proposal to pay for these advertisements using the Legal 

21 Proceedings Account is permissible and whether Bennet for Colorado and People for 

22 Patty Murray (collectively “Candidate Committees”) may coordinate the timing, content,

23 and placement of these advertisements with the DSCC. 

24 The Commission concludes that the DSCC may use funds from the Legal 

25 Proceedings Account to pay for television advertisements described in Solicitation 1 

26 because, under the circumstances proposed, disbursements from the Legal Proceedings 

27 Account for Solicitation 1 would not be for the purpose of influencing a federal election. 

28 The Commission further concludes that the Candidate Committees may coordinate 
AO 2022-21 (DSCC, et. al) 

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1 Solicitation 1 with the DSCC because limitations on coordinated expenditures by a 

2 national party committee do not apply to disbursements from a separate, segregated 

3 account established under 52 U.S.C. § 30116(a)(9)(C). Finally, the Commission 

4 concludes that the DSCC may not use funds from the Legal Proceedings Account to pay 

5 for the television advertisements described in Solicitation 2 because, under the 

6 circumstances proposed, disbursements from the Legal Proceedings Account for 

7 Solicitation 2 would be for the purpose of influencing a federal election.

8 Background 

9 The facts presented in this advisory opinion are based on your letter dated

10 September 20, 2022, your email dated September 23, 2022, and disclosure reports filed 

11 with the Commission. 

12 The DSCC is a national political party committee whose purpose is electing 

Democrats to the U.S. Senate.1 13 Bennet for Colorado is the principal campaign committee 

of Michael Bennet, the sitting Democratic senator from Colorado,2 14 and People for Patty 

15 Murray is the principal campaign committee of Patty Murray, the sitting Democratic 

senator from Washington state.3 16 Both senators are seeking re-election in the November 

17 2022 general election. 

1

 See DSCC, Statement of Organization, FEC Form 1(Sept. 19, 2022), https://docquery.fec.gov/cgibin/forms/C00042366/1630498/. 

2

 See Bennet for Colorado, Statement of Organization, FEC Form 1 (Aug. 17, 2022), 

https://docquery.fec.gov/cgi-bin/forms/C00458398/1624593/. 

3

 See People for Patty Murray, Statement of Organization, FEC Form 1 (Sept. 15, 2022), 

https://docquery.fec.gov/cgi-bin/forms/C00257642/1629812/. 
AO 2022-21 (DSCC, et. al)

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1 The DSCC established the Legal Proceedings Account under 52 U.S.C. 

2 § 30116(a)(9)(C), and it represents that the account is used to pay for expenses in 

connection with recounts, contests, and other legal proceedings.4 3 Requestors provide two 

4 alternate proposals under which the DSCC would use this Legal Proceedings Account to 

5 pay for television advertisements soliciting donations to the Legal Proceedings Account; 

6 the advertisements would feature Senators Bennet and Murray and other federal 

7 candidates. Under both proposals, the requestors represent that all advertisements would 

8 “comply fully” with the disclaimer requirements of 52 U.S.C. § 30120 and 11 C.F.R. 

§ 110.11.5 9 Further, under both proposals, if any donation exceeded a donor’s limit to the 

10 Legal Proceedings Account, the DSCC would refund the excess portion of the donation. 

11 Any funds raised through either proposed solicitation “would be spent exclusively on 

12 legal proceedings that comply with the permissible uses of the Legal Proceedings 

Account.”6 13

14 For Solicitation 1, the advertisements purchased using funds from the Legal 

15 Proceedings Account would feature one or more candidates, including Senator Bennet 

16 and Senator Murray. The ads would air “in states across the country,” including 

17 Colorado and Washington, and may air in the jurisdiction in which the featured 

18 candidate(s) are candidate(s) for re-election as well as in other jurisdictions where the 

featured candidate(s) are not candidates.7 19 Solicitation 1 would “[i]nclude a clear 

4 Advisory Opinion Request (“AOR”) at AOR001.

5 AOR006.

6 AOR006. 

7 AOR002.
AO 2022-21 (DSCC, et. al)

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1 solicitation asking viewers to donate to the Legal Proceedings Account so that [the] 

2 DSCC can protect the right to vote in court and prepare for potential recounts and 

election contests.”8 3 The solicitation included in these advertisements would be both oral 

4 and written, with the written solicitation appearing as an easily readable weblink. The 

5 weblink would direct viewers to a contribution page, which would clearly state that 

6 donations would be allocated to the DSCC’s Legal Proceedings Account.

7 The DSCC “wants to include recognizable political figures in the communications 

8 because it believes [doing so would] make viewers of the communications more likely to 

donate to the cause.”9 9 The advertisements would “focus on the issue of voter suppression 

and [would] make no mention of any political party.”10 10 The advertisements would also 

11 not contain express advocacy or publish or republish any candidate materials. The ads, 

12 however, would “[b]e coordinated, including timing, content, and placement” with the 

candidates appearing in the ads.

11 13

14 For Solicitation 2, the advertisements purchased using funds from the Legal 

15 Proceedings Account would feature “a single candidate seeking re-election . . . in the 

16 jurisdiction where the advertisement is disseminated” and would be “coordinated, 

17 including the timing, content, and placement with the Democratic Senate candidate 

whose race is featured” in the ad.12 18 Each ad would focus on “one or more policy issues 

8 AOR002.

9 AOR002.

10 AOR006.

11 AOR002.

12 AOR003.
AO 2022-21 (DSCC, et. al)

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1 central to the . . . general election in the jurisdiction of distribution” and “would either 

2 discuss a Democratic candidate and promote or support the candidate and [the 

3 candidate’s] policy position(s), or discuss a Republican candidate and attack or oppose 

the candidate and [the candidate’s] policy positions.”13 4 The advertisement would not 

5 publish or republish candidate materials, but “[m]ight in some circumstances expressly 

advocate the election or defeat of a clearly identified candidate for federal office.”14 6 The 

7 advertisements would not mention the Legal Proceedings Account or any legal 

8 proceedings, but would include a written link to an online webpage such as 

9 dscc.org/urgent and that website would “clearly state that all funds accepted through the 

page are allocated to [the] DSCC’s Legal Proceedings Account.”15 10

11 Questions Presented

12 1a. May the DSCC use funds in its Legal Proceedings Account to pay for 

13 television advertisements following the description for Solicitation 1? 

14 1b. May the Candidate Committees coordinate with the DSCC on such 

15 communications by having input on the content, timing, and placement of the 

16 communications for Solicitation 1?

17 2a. May the DSCC use funds in its Legal Proceedings Account to pay for 

18 television advertisements following the description for Solicitation 2? 

13 AOR003.

14 AOR003.

15 AOR003.
AO 2022-21 (DSCC, et. al)

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1 2b. May the Candidate Committees coordinate with the DSCC on such 

2 communications by having input on the content, timing, and placement of the 

3 communications for Solicitation 2?

4 Legal Analysis

5 1a. May the DSCC use funds in its Legal Proceedings Account to pay for 

6 television advertisements following the description for Solicitation 1?

7 Yes, the DSCC may use funds in its Legal Proceedings Account to pay for 

8 television advertisements following the description for Solicitation 1 because, under the 

9 circumstances proposed, disbursements from the Legal Proceedings Account for 

10 Solicitation 1 would not be for the purpose of influencing a federal election.

11 As added to the Act by the Consolidated and Further Continuing Appropriations 

12 Act, 2015 (“Appropriations Act”), 52 U.S.C. § 30116(a)(9)(C) authorizes a national party 

13 committee, including a national congressional campaign committee, to establish a 

14 “separate, segregated account” to “defray expenses incurred with respect to the 

15 preparation for and conduct of election recounts and contests and other legal 

proceedings.”16 16 Statements by House and Senate leaders at the time 52 U.S.C. 

17 § 30116(a)(9)(C) was enacted explained that “Commission precedent” on the raising and 

18 spending of recount funds would continue to apply to national party committee accounts 

16 Consolidated and Further Continuing Appropriations Act of 2015, Pub. L. No. 113-235, § 101, 

128 Stat. 2130, 2772-73 (2014).
AO 2022-21 (DSCC, et. al)

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1 established under 52 U.S.C. § 30116(a)(9)(C); those statements each cited earlier 

Commission advisory opinions on recount accounts.

17 2

3 In advisory opinions issued before enactment of the Appropriations Act, the 

4 Commission consistently stated that funds donated to a separate, segregated recount 

5 account, including an account established by a national political party committee, could 

6 not be used for the purpose of influencing a federal election, including for any “campaign 

activities.”18 7 Consistent with legislative history indicating that Congress intended the 

8 Commission’s conclusions in prior advisory opinions on recount accounts to continue to 

9 apply to separate, segregated national party committee funds established under 52 U.S.C. 

10 § 30116(a)(9)C), the Commission explained in Advisory Opinion 2019-02 (Bill Nelson 

11 for Senate) that funds in the DSCC’s Legal Proceedings Account established under 

12 52 U.S.C. § 30116(a)(9)(C) “could not be used for the purpose of influencing a federal 

election.”19 13 Similarly, the legislative history of the Appropriations Act and Commission 

14 advisory opinions predating the Appropriations Act also indicate that funds in the Legal 

Proceedings Account may be used to solicit donations to that fund.20 15

17 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner); 160 Cong. Rec. 

S6814 (daily ed. Dec. 13, 2014) (statement of Sen. Reid).

18 See, e.g., Advisory Opinion 2010-14 (DSCC) at 3, 5 (“[N]one of [DSCC’s] proposed recount 

activities can or will be used to campaign for any candidates or to influence any elections. Instead, recount 

activities paid for by the recount fund must have no relation to campaign activities.”) (citing Advisory 

Opinion 1978-92 (Miller) at 3 (“[I]n view of the special treatment and exemption accorded funds received 

and spent for recount purposes, any resulting surplus of funds may not be used in any manner that would 

constitute a contribution or expenditure under the Act or regulations.”).

19 Advisory Opinion 2019-02 (Bill Nelson for Senate) at 4.

20 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner) (explaining that

permissible uses of funds in 52 U.S.C. § 30116(a)(9)(C) account “include[e] the costs of fundraising for 

this segregated account”); 160 Cong. Rec. S6814 (daily ed. Dec. 13, 2014) (statement of Sen. Reid) (same); 

Advisory Opinion 2010-14 (DSCC) at 5 (“The DSCC may also use recount funds to defray the costs of 
AO 2022-21 (DSCC, et. al)

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1 Accordingly, the DSCC may use funds in its Legal Proceedings Account to pay 

2 for television advertisements following the description for Solicitation 1 because, under 

3 the circumstances presented in the request, the advertisements would be for the purpose 

4 of soliciting donations to the Legal Proceedings Account and not for the purpose of 

5 influencing a federal election. Although Solicitation 1 would feature federal candidates, 

6 the solicitation would “focus on the issue of voter suppression” and would not contain 

any express advocacy or mention any political party.21 7 The Commission assumes that 

8 Solicitation 1 would also not promote or support, or attack or oppose, any federal

9 candidate because that information is included only in requestors’ description of 

Solicitation 2.22 10 In addition, the advertisements would provide a clear solicitation for the 

11 Legal Proceedings Account. Under these circumstances, the advertisement would be for 

12 the purpose of soliciting donations to the Legal Proceedings Account and not for the 

13 purpose of influencing a federal election. Because funds in the Legal Proceedings 

soliciting donations to the recount fund. Commission regulations generally permit (and in some cases 

require) the proceeds of fundraising activities to be used to defray the costs of those activities.”)

21 AOR002, 6.

22 AOR003. The Act and Commission regulations define “Federal election activity” to include “a 

public communication that . . . promotes or supports . . . or attacks or opposes [a clearly identified 

candidate for federal office] (regardless of whether the communication expressly advocates a vote for or 

against a candidate)”. 52 U.S.C. § 30101(20)(A)(iii); 11 C.F.R. § 100.24(b)(3). However, prior advisory 

opinions have stated that activities paid for with recount funds “must have no relation to campaign 

activities.” Advisory Opinion 2010-14 (DSCC) at 3, 5; see also Advisory Opinion 2006-24 (National 

Republican Senatorial Committee, et al.) at 9 (concluding that state party committee could coordinate 

recount activities funded by state party committee’s recount account with federal candidate because “the 

limitations on coordinated spending by the State Party for a particular candidate are not applicable to a 

State Party’s recount fund” given that state party committee’s proposed recount activity was not in 

connection with a federal election and recount account funds could not be used for campaign activity).
AO 2022-21 (DSCC, et. al) 

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Account may be used to pay for solicitations for donations to that account,23 1 the proposal 

2 is permissible.

3 1b. May the Candidate Committees coordinate with the DSCC on such 

4 communications by having input on the content, timing, and placement of the 

5 communications for Solicitation 1? 

6 Yes, the Candidate Committees may coordinate with the DSCC on the content, 

7 timing, and placement of the advertisements for Solicitation 1. 

8 The Act limits coordinated expenditures by a national party committee on behalf 

of a federal candidate of that party.

24 9 However, the Act expressly provides that those 

10 limitations “shall not apply” to disbursements from a national party committee’s separate, 

segregated account established under 52 U.S.C. § 30116(a)(9)(C).25 11 In addition, as 

12 discussed above, given the description of the DSCC’s proposed Solicitation 1, the 

13 DSCC’s disbursements from the Legal Proceedings Account for Solicitation 1 would not 

14 be for the purpose of influencing a federal election and so no expenditure would result

from the proposed activity.26 15 Because the Act expressly excludes disbursements from an

23 See 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner); 160 Cong. Rec. 

S6814 (daily ed. Dec. 13, 2014) (statement of Sen. Reid); see also Advisory Opinion 2010-14 (DSCC) at 5. 

24 52 U.S.C. § 30116(d)(3).

25 52 U.S.C. § 30116(d)(5). The conclusion that these limitations do not apply to an account 

established under 52 U.S.C. § 30116(a)(9)(C) is also supported by the Appropriation Act’s legislative 

history. 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner) (“[I]t is the intent of 

the amendments contained herein that expenditures made from the accounts described in [52 U.S.C. 

§ 30116(a)(9)], many of which (such as recount and legal proceeding expenses) are not for the purpose of 

influencing federal elections, do not count against the coordinated party expenditure limits.”); 160 Cong. 

Rec. S6814 (daily ed. Dec. 13, 2014) (statement of Sen. Reid) (same).

26 See 52 U.S.C. § 30101(9)(A)(i) (defining expenditure to include “any purchase, payment, 

distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the 

purpose of influencing any election for Federal office.); see also Footnote 22. 
AO 2022-21 (DSCC, et. al)

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1 account established under 52 U.S.C. § 30116(a)(9)(C) from the limitations on a national 

2 party committee’s coordinated expenditures on behalf of candidates, and because the 

3 proposed activity would not result in an expenditure, the proposal is permissible.

4 2a. May the DSCC use funds in its Legal Proceedings Account to pay for 

5 television advertisements following the description for Solicitation 2? 

6 No, the DSCC may not use funds in its Legal Proceedings Account to pay for 

7 television advertisements following the description for Solicitation 2 because

8 disbursements from the Legal Proceedings Account for Solicitation 2 would be for the 

9 purpose of influencing a federal election under the circumstances proposed.

10 As discussed above, funds the Legal Proceedings Account may not be used for the 

11 purpose of influencing a federal election, including for any campaign activities. Under 

12 the circumstances presented here, Solicitation 2 would be for the purpose of influencing a 

13 federal election. Solicitation 2 would feature a single federal candidate in the jurisdiction 

14 where the television ad is disseminated and would “either discuss a Democratic candidate 

15 and promote or support the candidate and the [candidate’s] policy position(s), or discuss a 

16 Republican candidate and attack or oppose the candidate and the [candidate’s] policy 

position(s).”27 17 Solicitation 2 also may expressly advocate for the election or defeat of a 

clearly identified federal candidate “in some circumstances.”28 18 Such an advertisement, 

19 which the DSCC proposes to run in the month preceding the federal election, would be 

27 AOR003. 

28 AOR003.
AO 2022-21 (DSCC, et. al)

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1 for the purpose of influencing a federal election and thus cannot be funded using the

2 Legal Proceedings Account. Accordingly, the proposal is not permissible.

3 2b. May the Candidate Committees coordinate with the DSCC on such 

4 communications by having input on the content, timing, and placement of the 

5 communications for Solicitation 2?

6 This question is moot given the Commission’s response to question 2a.

7 This response constitutes an advisory opinion concerning the application of the 

8 Act and Commission regulations to the specific transaction or activity set forth in your 

request.29 9 The Commission emphasizes that, if there is a change in any of the facts or 

10 assumptions presented, and such facts or assumptions are material to a conclusion 

11 presented in this advisory opinion, then the requestors may not rely on that conclusion as 

12 support for its proposed activity. Any person involved in any specific transaction or 

13 activity that is indistinguishable in all its material aspects from the transaction or activity 

14 with respect to which this advisory opinion is rendered may rely on this advisory 

opinion.30 15 Please note that the analysis or conclusions in this advisory opinion may be 

16 affected by subsequent developments in the law including, but not limited to, statutes,

17 regulations, advisory opinions, and case law. Any advisory opinions cited herein are 

18 available on the Commission’s website. 

19 On behalf of the Commission,

29 See 52 U.S.C. § 30108. 

30 See 52 U.S.C. § 30108(c)(1)(B).
AO 2022

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1 Allen J. Dickerson 2 Chairman